Appeal No.	 EAT/255/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MRS R CHAPMAN
MR E HAMMOND OBE

MANSFIELD BREWERY PLC	APPELLANT

MRS G E COLLINS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR B NAPIER
OF COUNSEL
(INSTRUCTED BY)
MESSRS PINSENT CURTIS
SOLICITORS
41 PARK SQUARE
LEEDS LS1 2NS	

	JUDGE JOHN BYRT:	This is a Preliminary Hearing in an Appeal against the decision promulgated on 5th January 1999 of an Employment Tribunal sitting in Nottingham when they held that the Employers had discriminated against the Employee on the grounds of her sex and unfairly dismissed her.  The Employers appeal that decision.  

1	The Employee in this case, Grace Collins, was employed by the Appellant since 1992 and since 1994 had occupied the position of being an Area Operations Manager.  On 28th April 1997, she left that employment on maternity leave and in due course, she said she wanted to return to her employment but on a part-time basis.  On 22nd October 1997, she was told by the Area Operations Manager that the post she had previously occupied was not available to her on a part-time basis.  Nonetheless, on 26th November she gave the Employers formal notice that she would be returning to her old job on 22nd December but already, she had been told it was not going to be available to her.  

2	In the meantime, somewhat sensibly we think, she applied for a job as a Catering Operations Manager.  Again, that was a full-time job and she requested the opportunity of working it on a part-time basis to see if it could be done.  On 2nd December 1997 she was given that job but with the qualification that the decision she should have it on a part-time basis, would be reviewed in April 1998.  On 6th January 1998 she started that job.  On 26th February 1998, her Employers told her that as from April, she would have to work full time in that job if she wished to continue.  Efforts were made at arranging job-sharing but eventually, they came to nothing.  

3	As a result of the Employers’ decision, Mrs Collins tendered her resignation on 17th March 1998, and again, in the spirit of co-operation, she agreed to stay on part-time until a replacement could be found.  On 3rd July, she finally left.  By that time, she had already commenced proceedings before the Employment Tribunal.

4	The Employment Tribunal itself came to certain findings.  They found that there was indirect discrimination because the Employers had placed upon her a requirement on returning to her job, either as an Area Operations Manager or as a Catering Operations Manager, which she could not reasonably comply with and thereby, they applied the provisions of Section 1(1)(b) of the Sex Discrimination Act.  Mrs Collins’ case is set out in para 17 of the Tribunal’s decision.  She said she just could not do either job full time because she could not make arrangements for her child to be properly cared for on the basis that she was working 5 days a week.  Her husband could collect the child 1 or 2 days a week but not 5.  Arrangements possibly could have been made if she was allowed to continue to work part-time.  That was her argument.

5	The Tribunal’s findings are set out in para 32 of their decision and there, they say:

“The main argument put forward by the Respondent as to indirect discrimination is that the Applicant simply chose not to comply with the Respondent’s condition rather than could not comply”.

6	In due course, in that same paragraph the Tribunal came to the conclusion:

“We accept the Applicant’s evidence”

	and in doing so, they rejected the Employer’s case.  They accepted the Applicant’s evidence that having the child in nursery for 5 days a week, with all the consequential problems of having to collect her each evening, could not be managed by her and her husband.  They end the paragraph by saying:

“It was not simply a matter  of the Applicant taking a decision that it was preferable for her son not to be in a nursery for 5 days, it was not possible for the Applicant to manage this”.

7	The grounds of Appeal argued today by Mr Napier are limited to just the one.  It is a question of what was meant by the particular words of the relevant sub-section that a condition was one which the Employee cannot comply with and a question of construction of what is meant by that phrase.  His skeleton argument most helpfully refers to a number of authorities which demonstrate to us that the law is comparatively simple in this area.  At the end of the day, it is a matter for an industrial jury such as the Employment Tribunal is, to consider the practicalities and reasonableness of the decision made by the individual Employee concerned.  In this case, it would seem that in para 32 the industrial jury has delivered its decision.  Mr Napier complains that they have stated their conclusions but have stated none of the evidence on which those conclusions were based and he says this particular issue is so crucial to the determination of this case, that the Tribunal was under an obligation to give an indication of the evidence upon which it relied in order to justify its conclusions.

8	We observed that, in his argument, Mr Napier does not say that the Tribunal came to the wrong reason.  What he says is that, in articulating their conclusions, they did it inadequately in that they did not state the evidence upon which they relied.  The question then is how would one let this matter proceed if it went to a Full Hearing and Mr Napier accepted that it would require us to direct that the Chairman’s notes of evidence be produced and it would only be then that one would be able to see whether the Tribunal came to a reasonable decision.  

9	This is not a case where the Appellant argues that the Tribunal came to the wrong decision because of the evidence which was tendered.  It is plain, in our view, that there must have been a considerable amount of evidence directed to this issue.  There would have been put in cross-examination of the Employee herself, exactly how it is that the Employers say she should have been able to cope with the situation of her working 5 days a week.  It is only because Mr Napier was not the advocate present on that occasion that we have no indication of what the evidence is upon which the Tribunal relied in coming to their conclusion.  We have no doubt that the parties themselves who were present at the hearing would know exactly the reason why they won or lost when the Tribunal came to the conclusion that it was just not possible for the Applicant to make arrangements which would enable her to work full time 5 days a week and have the child properly looked after.

10	If we allowed this matter to go forward to a full hearing, Mr Napier would invite us to obtain the notes of evidence from the Chairman.  We take the view that that is an unnecessary exercise.  It would in our view be in the nature of a fishing expedition in order to justify a decision to let this matter go forward to a full hearing.  He accepted that, if the notes of evidence were produced, it may well be that the Tribunal considering this matter at a full hearing would then see that there was no case to be advanced by the Appellants.  We think that is the wrong way to go about a case of this sort.  If there was a substantive part of the Appellant’s case which it is alleged the Tribunal did not consider, we think the evidence which the Tribunal is said to have overlooked should have been placed before us, backed up and supported by some affidavit or statement by a solicitor who was present at the Hearing, indicating what that evidence is.  We do not think it is right to allow this matter to go forward to a Full Hearing just in case the Chairman’s notes of evidence might indicate there was some inadequacy in the reasons advanced by the Tribunal in para 32 of its decision.  

11	In all the circumstances, therefore, we think the Tribunal have adequately stated the fundamental facts they had to find in order to comply with the requirements of the Act, and we can see no arguable grounds for allowing this case to go forward to a Full Hearing.  In those circumstances, we dismiss this Appeal.